The Court of Appeals Addressed Primary Assumption of the Risk Doctrine

Scholars wondered whether this doctrine would still be applicable because of recent New York cases stating that a plaintiff could be granted summary judgment on liability even if the plaintiff had comparative fault. See CPLR 1411.

Grady concerned two related cases. One involved a high-level high school basketball player who was injured chasing a ball. The court ruled that the case could be dismissed because the primary assumption of the risk rule still applies “in limited circumstances … when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks.” Here, the plaintiff’s injuries were inherent in the sport of basketball.

However, in the related case, the court refused to dismiss under assumption of the risk where the plaintiff was injured during a baseball drill, which required multiple balls in play and a small screen protecting the players. The court ruled that this drill was not inherent in the sport of baseball.

These cases illustrate that the primary assumption of the risk doctrine is still alive and well. Although, it would appear not to apply to drills that are not part of the usual playing activity of the sport.

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